THE CURIOUS CASE OF STATEHOOD: PALESTINE AND THE ICC

On January 2 of this year, Palestinian Ambassador to the United Nations Riyad H. Mansour delivered the materials necessary for accession to the International Criminal Court (ICC) to the United Nations. Thus, Palestine will become the 123rd member of the ICC as of April 1, 2015, much to the dismay of the United States and Israel. Palestine’s decision to join the ICC has prompted international discussion over what membership in the ICC means in the context of the Israel-Palestine conflict. In order to understand what Palestine’s membership to the ICC holds, it is essential to look at the proponents and opponents of Palestine’s accession and its interests.

Palestine’s membership in the ICC comes at a time when Palestine was suffering a humiliating defeat at the hands of the U.N. Security Council. On December 30, 2014, a resolution previously submitted by Jordan’s government was voted upon by the Security Council. The resolution was a plan that established a timeline for peace agreements, giving Palestine and Israel a 12-month deadline. In addition to peace agreements, the resolution called for the end of Israeli occupation by 2017, which would coincide with the 50-year anniversary of the 1967 war. The end of Israeli occupation would result in a Palestinian state with a capital of East Jerusalem, and pre-1967 borders. Jordan’s resolution managed to gain support from France, China, Russia, Luxembourg, Argentina, Chile, and Chad. The resolution ultimately failed due to vetoes from the United States and Australia, and ambivalent abstentions from the United Kingdom, South Korea, Lithuania, Rwanda, and Nigeria. The resolution was criticized heavily by the United States, with U.S. Ambassador to the U.N. calling the resolution a “staged confrontation”. Two days later, Mahmoud Abbas signed the accession documents for the ICC.

Despite the defeat at the Security Council, Palestine has already been working towards achieving recognition as a state. On January 22, 2009, the Palestinian Authority submitted a declaration that would give the ICC jurisdiction over the Palestinian territories, allowing for a retroactive investigation dating as far back as July 1, 2002. When the ICC was prepared to launch its preliminary investigation, it faced the difficult question of Palestinian statehood. Ultimately, the ICC declined to handle the application as Palestine was not considered a state due to its status at the General Assembly as an observer. This changed on November 29, 2012, when the General Assembly upgraded its status from a permanent observer to a non-member observer state. The vote was largely symbolic, as it contributed to the growing movement of members of the international community recognizing Palestine’s statehood. However, it also had significant effects, allowing Palestine to sign onto international treaties, as well as allowing it to apply for membership to the ICC.

The International Criminal Court has the potential to be a useful weapon for Palestine to wield against Israel. As of April 1, 2015, the ICC will be able to hold individuals accountable for war crimes, crimes against humanity, and genocide. The ICC will also be given retroactive jurisdiction, dating back to June 13, 2014, a date that will allow the ICC to investigate war crimes and crimes against humanity perpetuated during Operation Protective Edge. Granting the Chief Prosecutor this power also means that Hamas and Islamic Jihad could be brought to the Hague. Despite this, Hamas and Islamic Jihad have both voiced support for the Palestinian Authority’s bid.

However, the ICC’s very own foundations may result in Israel emerging from any of its investigations largely unscathed. This is largely due to the principle of complementarity, which will exempt any national from investigation if the state can prove it is already taking appropriate action. If Israel can show that it is prosecuting its own officers and civilians for war crimes and crimes against humanity, then Israelis will be unable to be brought to the Hague. It will be difficult to hold Israel accountable for any war crimes due to complementarity, despite accusations of Israel’s own investigations being insufficient. The Oslo Accords also provide another exemption for Israel, as Oslo II resulted in Israel receiving jurisdiction over Israelis living in all zones of the West Bank, as opposed to the Palestinian Authority. The principle of complementarity and the principles of the Oslo Accords may make seeking retroactive justice for the acts committed during Operation Protective Edge difficult, but not impossible.

The real threat of Palestine’s membership to the ICC does not rest on charges of violence during past conflicts, but rather on any charges involving Israeli settlement into Palestinian territories. The movement of settlements into the West Bank has had a detrimental effect on Palestinians. Up to 878 Palestinians had their homes demolished, and Israel has plans for 13,851 new settlement housing units. Under the Rome Statute, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is considered a war crime. Furthermore, in 2004, the International Court of Justice ruled that Israeli settlements “including East Jerusalem, are illegal and an obstacle to peace.” Settlements have inspired international condemnation and outrage, with even the United States condemning Israeli settlements. Despite this, Israel has continued to develop roads and housing for settlers, depriving Palestinians of access to water and agriculture. Furthermore, Israeli settlers have failed to be held accountable for violence towards Palestinians, including vandalism and assault. Of 249 investigations of violence towards Palestinian civilians, only 14.5% resulted in an indictment, and of 303 investigations of property damage, only 2.64% resulted in an indictment. While the Oslo Accords maintain Israel’s responsibility over its civilians in zones of settlement, the argument of complementarity may not be applicable in cases of settler violence and occupation. This provides an opportunity for Palestine to hold Israel accountable, and may provide greater leverage for Palestine in wake of peace negotiations.

Palestine’s accession to the ICC was applauded by many human rights advocates. Organizations such as Human Rights Watch and Amnesty International praised Palestine, and warned other countries to end retaliation against Palestine. Meanwhile, the First Chief Prosecutor of the International Criminal Court, Luis Moreno Ocampo, has claimed that Palestine’s accession serves as an opportunity towards peace, and has argued that under the jurisdiction of the ICC, both sides will be deterred from committing further war crimes in future conflicts. He claims this would be an improvement to both the security of the Palestinians and the Israelis. However, Palestine’s accession has not been without backlash. Israel responded with a threat, withholding $127 million in tax money from Palestinians, most of which goes towards supporting the Palestinian Authority’s budget. In addition to this, U.S. foreign aid to the Palestinian Authority could also be cut off, an amount worth $400 million. This could become a challenge for Abbas and the Palestinian Authority, which are already struggling to rebuild Gaza after Operation Protective Edge. The withholding of tax revenue would put a strain on resources, which are already scarce.

With the ratification of the Statute of Rome, Palestine is making a change with heavy political implications. Israel and the U.S. have seen Palestine’s membership as a threat to the peace process that has been curated by the U.S., but other international actors see it as an opportunity to deliver justice, and peace along the way. The General Assembly vote that gave Palestine statehood was largely symbolic, and provided opportunities for the Palestinian Authority to seek justice, though it remains to be seen whether the ICC will be able to ultimately deliver it.